This action was commenced in the district court of Tulsa county by W. B. McWilliams against the Sand Springs Railway Company as an action for damages for personal injuries. It is a companion case to the case of Shields v. Sand Springs Railway Co., 150 Okla. 177, 1 P.2d 144. The cause was tried to a jury, which resulted in a verdict for plaintiff in the sum of $20,000. From a judgment thereon, defendant has appealed. The parties will be referred to as they appeared in the trial court.
It appears that the defendant company owned and operated a railway between Tulsa and Sand Springs, and used both steam and *Page 86 electric trains; that it maintained a double track, the trains going west customarily using the north track, and going east, using the south track; that near a station known as Hale the railway intersected a paved highway, which was the principal highway between Tulsa and Sand Springs, and over which there was considerable travel.
On the night of March 22, 1924, about 9:00 o'clock p.m., plaintiff, in company with three other persons, was traveling in a Ford touring car on said highway and approached the crossing from the south. At that time a rain was falling and the sky was overcast with clouds. When the Ford car reached the south track of the defendant company, it was struck by an electric switch engine, traveling west on the south track. The car was overturned and plaintiff suffered numerous and severe injuries. Since no assignment of error is presented in the brief on the question of excessive damages, there will be no necessity to set out in detail the nature of the injuries.
At the time of the injury, the Ford car was being operated by one Frank McLean, the owner of the car, a friend of plaintiff. A lady, Mrs. Shields, was occupying the front seat of the car with McLean. The plaintiff and one Mrs. Cheshire were occupying the back seat of the car.
Plaintiff alleges that defendant had placed at the crossing an electric alarm bell that was designed to ring an alarm when cars on either of defendant's tracks were approaching the highway crossing; that, at the time of the collision, one of defendant's passenger cars was standing lighted about 50 yards east of the highway crossing; that for a long time prior to the date of injury, it had been the custom of defendant to use the north track for its cars going from Tulsa to Sand Springs and to use the south track for cars going from Sand Springs to Tulsa, which custom was well known to Frank McLean, the driver of the car, and to plaintiff; that at the time of the injury, the switch engine, which struck the car in which plaintiff was riding, was going to Sand Springs from Tulsa on the south track. It is alleged that the electric alarm bell failed to work and was not ringing at the time plaintiff and his companions approached the crossing. It is further alleged that as the switch engine approached the crossing, the employees of defendant company, in charge thereof, failed to sound a whistle or gong or to give any notice of approach of said engine to said crossing. It is further alleged that defendant failed to use or have a flagman to warn travelers upon the highway of approaching cars or trains on the track.
Defendant denies negligence on its part and alleges that plaintiff was guilty of contributory negligence, which was the proximate cause of the injury, and that plaintiff therefore cannot recover.
Defendant contends that while under the Constitution contributory negligence is a question of fact for the jury, under the record in this case, there is not sufficient evidence as to primary negligence on the part of the defendant to authorize a verdict against defendant. In this connection, the testimony is highly conflicting. There is evidence on the part of the plaintiff that the alarm bell did not work and that no warning was sounded from the switch engine as it approached the crossing on the south track, not customarily used for westbound traffic, while there is positive evidence on behalf of defendant that the electric alarm was working and that ample warning was given by ringing the bell and blowing the whistle as the engine approached the crossing. The rule is well settled in this jurisdiction that in an action at law where the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the evidence lies. If there is any evidence reasonably tending to support the verdict, it will not be set aside. St. Louis S. F. Ry. Co. v. Russell, 130 Okla. 237, 266 P. 763; St. Louis S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 P. 491; Dague v. McCaslin,81 Okla. 66, 196 P. 696.
Defendant argues that the evidence offered by plaintiff on this point is negative in character and insufficient to overcome the positive testimony of defendant that the proper signals were given. In this connection, certain witnesses, who were approaching the crossing in another car just about the time of the collision, were introduced by plaintiff. These witnesses testified they did not hear the whistle, gong, or bell. Testimony of this character is not negative testimony, where it is shown that the witnesses were in a position to hear and could have heard the signals had they been given. In the case of St. Louis S. F. Ry. Co. v. Russell, supra, it is said:
"A number of witnesses for defendant testified that the proper signals were given immediately after the train had passed over the Santa Fe crossing. Counsel for defendant say that plaintiff's evidence is negative in character, and is not sufficient to overcome the positive testimony that the signals were given. With this we do not agree. *Page 87 Some of the evidence above referred to is positive in form as well as character. Other evidence negativing the giving of the signals is negative in form, but not purely of a negative character. It has been repeatedly held by this court, and many others, that evidence that one did not hear a signal given, when he was in a position to hear and could have heard had it been given, is not purely negative in character, but is a positive statement of a fact. The value of such testimony depends upon whether the witness was in a position to hear, and the amount of attention he gave the giving of signals. Zenner v. Great Northern Railroad Co. (Minn.) 159 N.W. 1087; St. Louis S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 P. 491; Wichita Falls N.W. R. Co. v. Groves, 81 Okla. 34, 196 P. 677; St. Louis-San Francisco Ry. Co. v. Robinson, 99 Okla. 2, 225 P. 986."
Defendant assigns as error the refusal of the trial court to allow the admission of certain testimony to the effect that, immediately prior to the collision, the plaintiff, or other persons in the car, were engaged in singing a certain song of a vulgar nature. Said testimony was offered for the purpose of showing the nature and character of the enterprise in which plaintiff was engaged at the time, and was objected to for the reason that it would prejudice the jury against the plaintiff. We can find no prejudicial error in the court's ruling. The admission of said testimony would probably have tended to prejudice the jury against plaintiff. We have also examined the record and find that the nature and character of the enterprise in which the parties were engaged at the time of the injury was not seriously disputed by plaintiff or his companions, evidence of which the court freely admitted. The record discloses that all of the occupants of the car were drinking.
Defendant contends that the court erred in refusing certain instructions offered on the theory of imputed negligence. The instructions given by the court, in this contention, are as follows:
"12. However, you are instructed that the negligence, if any, of the driver, McLain, is not imputable to the plaintiff, but the plaintiff was bound, himself, to exercise ordinary care for his own safety, that is, to exercise such care as a prudent person situated under the same or similar circumstances as he was situated would have exercised, both as to his own conduct and as to any influence and control he had or in the exercise of ordinary care could or should have had over the conduct of said driver, McLain, together with all other facts and circumstances in the case.
"13. You are further instructed that if you believe, from a preponderance of the evidence that McLain, the driver of the car in which plaintiff was riding, was guilty of negligence at the time of the accident, and you further believe from a preponderance of the evidence, that the servants of the defendant in charge of the engine of the defendant were also guilty of negligence at the time of the accident, and that such negligence on the part of McLain, if any, and such negligence on the part of the the servants of the defendant, if any, concurred to directly and proximately cause plaintiff's injuries, if any there were, then your verdict should be for the plaintiff unless you should further find that the plaintiff was guilty of contributory negligence as that term has been hereinbefore defined in instruction numbers 10 and 12 and other instructions herein."
The instruction offered by the defendant and refused by the court is as follows:
"That where a person enters into an automobile being driven or about to be driven by a person under the influence of intoxicating liquors, and whom he knows to be under the influence of intoxicating liquors, or in the exercise of ordinary care should have known to be under the influence of intoxicating liquors, that it became the duty of such person about to ride in such car, and while riding in said car, to direct the movements of said car, and the actions of the driver of said car; and that if he fails to do so, the law implies that it is his duty to do so; and that any negligence of the driver of said car under such circumstances thereby becomes the negligence of the other occupants — of the passenger or occupant of the car."
Under the decisions of this court there was no error in connection with the giving of said instructions or the refusal of the requested instructions. In the case of Hasty v. Pittsburg County Ry. Co.,112 Okla. 144, 240 P. 1056, it is said:
"In order to impute the negligence of the chauffeur to the one riding, the relation of master and servant or principal and agent must exist, or the parties must be engaged in a joint enterprise, whereby responsibility for the acts of each other exists. St. Louis S. F. Ry. Co. v. Bell,58 Okla. 84, 159 P. 336, L.R.A. 1917A, 543; Okla. Ry. Co. v. Thomas,63 Okla. 219, 164 P. 120, L.R.A. 1917E, 405; Thrasher v. St. Louis S. F. Ry. Co., 86 Okla. 88, 206 P. 212; Muskogee Elec. Trac. Co. v. Richards, 97 Okla. 61, 222 P. 265, 267. This rule excludes such imputation otherwise. In the Bell Case, supra, it is said:
"The doctrine of imputable negligence, except when countenanced by statute, is a fiction of the law, which finds small favor with the courts and has been very infrequently applied in our own.' * * * *Page 88
"Assuming that the trip was a "joy ride," as contended, it was not a joint or common undertaking. In Atwood v. Utah Light Ry. Co.,44 Utah 366, 140 P. 137, the court, quoting approvingly from Cotton v. Willmar S. F. Ry. Co., 99 Minn. 366, 109 N.W. 835, L.R.A. (N. S.) 643, 116 Am. St. Rep. 422, 9 Ann. Cas. 935, said:
""Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there be a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control and management.'"
"We think the right to direct and govern the conduct of each other, referred to above, involves the correlative duty so to do, or responsibility therefor. That duty involves authority in the matter of directing the driving. The principal or master has the right and authority to direct his agent or servant in the matter of driving, whence arises the correlative duty of so doing in a proper case — leastwise a responsibility therefor. Mr. Justice Hardy, in Oklahoma Ry. Co. v. Thomas, 63 Okla. 219, 164 P. 120, says:
"Disregarding the passenger's own due care, the test whether the negligence of the driver is to be imputed to the one riding depends upon the latter's control or right of control of the actions of the driver so as to constitute, in fact, the relation of principal and agent, or master and servant, or his voluntary unrestrained, noncontractual surrender of all care for himself to the caution of the driver.'
"In this latter alternative, the passenger would become, in law, as mere freight. We do not here attempt to define joint enterprise. It is sufficient to observe some qualities of a joint enterprise that are not present in this case. As held in Shutz v. Wells (Mo.App.) 264 S.W. 479, imputability of automobile driver's negligence to passenger is not determined by the character of the driver's negligence, but by the relationship of driver to passenger. This relationship must be more than, or different from, affinity, as shown hereinafter, or consanguinity. It has no reference to a friend, guest, companion, or invitee. See Bell Case."
The rule contended for by the defendant finds support in some jurisdictions, but this court has heretofore rejected the doctrine of imputed negligence in this jurisdiction, except under certain circumstances not shown in this case. LaFayette v. Bass, 122 Okla. 182,252 P. 1101; A., T. S. F. Ry. Co. v. Calhoun, 18 Okla. 75, 89 P. 207, 11 Ann. Cas. 681; Chickasha Street Ry. Co. v. Marshall, 43 Okla. 192,141 P. 1172; Lone Star Gas Co. v. Parsons, 159 Okla. 52, 14 P.2d 369.
In the very recent case of William Miller, Adm'r, v. Union Pacific Railroad Co. (decided Dec. 4, 1933) 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285, the Supreme Court of the United States said:
"Although it was at one time rule in England * * * that the negligence of the driver of a vehicle is imputed to a passenger, that doctrine, much criticised and finally abandoned in England * * * was never generally accepted in this country. Followed by a few state decisions, it was rejected by the great weight of American authority, and, after full consideration, distinctly repudiated by this court. Little v. Hackett,116 U.S. 366, 29 L.Ed. 652, 6 S.Ct. 391. And see Union Pac. Ry. v. Lapsley, 51 F. 174. Whether a passenger or guest in a public or private conveyance, having no control over its movement, may be denied a right of recovery for personal injury or death on the ground of contributory negligence, depends upon his own failure to exercise a proper degree of care, and not upon that of the driver. This is true where the passenger is the wife of the driver as in other cases. Chicago, R. I. P. Ry. Co. v. Fanning, 42 F.2d 799, 803. And while the state decisions are not uniform on the subject, the federal rule is definitely settled that the burden of proving such contributory negligence rests, in all cases, upon the defendant * * * although if such negligence be established by plaintiff's evidence, it hardly seems necessary to add, defendant may have the benefit of it."
Defendant argues that McLean was drunk at the time he drove the car upon the tracks, and much evidence was admitted by the court along this general line. The controlling issues of primary negligence on the part of the defendant and contributory negligence on the part of the plaintiff, under proper definitions of each, were submitted to the jury, and the determination of the jury on said issues, under conflicting evidence, is binding on this court.
Defendant contends that the trial court erred in instructing the jury on the doctrine of the last clear chance, and cites in support thereof: Buss v. C., R. I. P. Ry. Co., 77 Okla. 80, 186 P. 729; St. Louis S. F. Ry. Co. v. Clark, 42 Okla. 638, 142 P. 396; A., T. S. F. Ry. Co. v. Baker, 21 Okla. 51, 95 P. 433; Denver City Tramway Co. v. Cobb, 164 F. 41; A., T. S. F. Ry. Co. v. Taylor, 196 F. 878; A., T. S. F. Ry. Co. v. Bratcher, 99 Okla. 74, 225 P. 941; Shuck v. Davis, 110 Okla. 196,237 P. 95.
The facts in the instant case, however, *Page 89 are distinguishable from the state of facts in the cases cited. The switch engine of the defendant had been on a sidetrack for some time and had just started on its trip towards Sand Springs. Its rate of speed, variously estimated by the witnesses, was from five to ten miles per hour at the time of the collision. The speed of the automobile was estimated to be from 12 to 20 miles per hour by the various witnesses. From the testimony of several of defendant's witnesses, we conclude that there was not a great deal of difference between the speed of the engine and the speed of the car immediately prior to the time they reached the point of collision. There is evidence tending to show that the engine might have been stopped sooner than it was in view of the slow rate of speed at which it was traveling. These facts, in addition to the facts already enumerated, were amply sufficient to justify the submission of said instruction to the jury. See C., R. I. P. Ry. Co. v. Martin,42 Okla. 353, 141 P. 276; Thrasher v. St. L. S. F. Ry. Co., 86 Okla. 88,206 P. 212; C., R. I. P. Ry. Co. v. Owens, 78 Okla. 114, 189 P. 171; Muskogee Elec. Trac. Co. v. Tanner, 93 Okla. 284, 220 P. 655; Lusk v. Haley, 75 Okla. 206, 181 P. 727; St. L. S. F. Ry. Co. v. Bryan,113 Okla. 39, 237 P. 613; Wichita Falls N.W. Ry. Co. v. Groves,81 Okla. 34, 196 P. 677; A., T. S. F. Ry. Co. v. Baker, 21 Okla. 51,95 P. 433; St. L. S. F. Ry. Co. v. Miller, 117 Okla. 60, 245 P. 52; C., R. I. P. Ry. Co. v. Pedigo, 123 Okla. 213, 252 P. 1095; Southwest Mo. Ry. Co. v. Duncan, 139 Okla. 287, 282 P. 327.
Other assignments of error relating to instructions for the most part have been hereinabove disposed of. All of the instructions, when taken together, fairly presented the issues involved in the case.
The judgment of the trial court is affirmed.
ANDREWS, McNEILL, BAYLESS, BUSBY, and WELCH, JJ., concur. RILEY, C.J., CULLISON, V. C.J., and SWINDALL, J., dissent.